Attorneys for the Shelby County Commission are asking the judge overseeing the ongoing legal battle over the county's public schools to force The Commercial Appeal to release some website comments and the identifying information for some commenters.

The Commission is arguing that the information could potentially help it prove, in a case to be heard at trial on Jan. 3, that the passage of laws allowing the statewide ban on new municipal school districts to be lifted in suburban Shelby County municipalities "was motivated, at least in part, by an intent to achieve ... disparate racial impact." (NOTE: An earlier version of this story improperly described the new statewide laws, which do allow for the lifting of the statewide ban on new municipal or special school districts in Shelby County only.)

Harvesting some comments and the identifying information attached to some website commenters, the Commission argues, may help them prove the laws were passed in part out of racial motivations to force "the re-segregation of the schools in Shelby County."

An original request was filed July 25 asking for the identities of all online commenters to 45 stories that ran between Nov. 19, 2010, and July 12, 2012. The Commission now wants U.S. District Judge Samuel "Hardy" Mays to force The Commercial Appeal to provide that information within five days. Deadlines are nearing for Commission attorneys to argue against motions from the state and suburban municipalities to dismiss the civil-rights claims altogether.

A trial was held in September over separate claims related to state constitutional challenges to the laws lifting the statewide ban on new municipal school districts, and Mays is expected to rule on them soon.

In arguing for release of comments and identifying information of commenters, Commission attorneys cite language from precedent cases saying that sometimes individuals or entities "realize the unattractiveness of their prejudices when faced with their perpetuation in the public record. It is only in private conversation, with individuals assumed to share their bigotry, that open statements of discrimination are made, so it is rare that these statements can be captured for purposes of proving racial discrimination in cases such as this."

Chris Peck, editor of The Commercial Appeal, has called the subpoena a "fishing expedition" and Memphis attorney Lucian Pera and Washington attorney Paul Alan Levy, a member of the Public Citizen Litigation Group, have been fighting the requests.

In August, after Pera and Levy submitted a letter to the Commission asking it to drop the request, Peck said: "It's not just a fishing expedition now. Now the county commissioners are dragging a net through the ocean in an unprecedented attempt to gather up more than 9,000 online comments from The Commercial Appeal's website. This just seems like a reach too far."

Imad Abdullah, a Baker Donelson associate who requested the subpoena, includes in Friday's motion, a 23-page printout of The Commercial Appeal's online "privacy policy" that seeks "to explain what information may be collected on our website, how we use this information, and under what circumstances we may disclose the information to third parties."

Abdullah cites numerous ways that privacy policy informs people that The Commercial Appeal may sell, share or otherwise use information provided by commenters to third party vendors, outside marketing agencies and even courts of law. He quotes language from one section that says "we reserve the right to disclose any personally identifiable or non-personal information about you if we are required to do so by law, ... or if we believe that such action is necessary to ... conform with the requirements of the law or legal process ..."

On Friday, Pera wrote in an email: "It's really great that the Shelby County Commission's and its lawyers are so deeply concerned about The Commercial Appeal's relationship with the users of its website, but the First Amendment is about protecting citizens from the oppressive use of government force because of a citizen's free expression. Here, not only is the power of a court being used against these citizens — the commenters — but it's actually being used by elected officials themselves. It's wrong, and The Commercial Appeal is going to resist it."